KANTILATA SARANGI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this writ application has prayed for quashing the order dated 28 -4 -98 passed by the District Inspector of Schools in Annexure -5 holding that the petitioner was not working in Chitrotpala M E. School, Janardanpur, from 17 -5 -90 to 20 -10 -97 and to adjust her in any other school. The case of the petitioner is that on 16 -5 -90 one Balaram Das, a regular Teacher of Chitrotpala M. E. School resigned from his post and upon acceptance of his resignation the post fell vacant. On 17 -5 -90 the Managing Committee of the school appointed the petitioner on ad hoc basis awaiting appointment of the Selection Board candidate. On 29 -6 -90 the Secretary of the Managing Committee recommended the case of the petitioner to the District Inspector of Schools for approval of her appointment against the said post and for continuance till replaced by a Selection Board candidate. On 26 -7 -91 the District Inspector of Schools in Course of his inspection counter -signed the Attendance Register and other documents, wherein the petitioner was shown to have been appointed as Assistant Teacher of the school on ad hoc basis. Despite the recommendation made by the Secretary of the Managing Committee of the schools no steps were taken. Therefore the petitioner approached Court in O. J. C. No. 14321 of 1997. The said writ application was disposed of on 4 -11 -1997 directing the District Inspector of Schools to dispose of the recommendation made by the Secretary of the Managing Committee within a specified period. After disposal of the said writ application, by order dated 28 -4 -98 the District Inspector of Schools refused to accord approval of petitioner's appointment on the grounds that the petitioner's appointment was illegal, as at the relevant time, the State Government had imposed a ban on ad hoc appointment by order dated 31 -12 -88, the Managing Committee appointed the petitioner without obtaining prior approval of the competent authority, the Managing Committee did not allow a Selection Board Candidate to join in the institution, and that the post has already been filled up on transfer of one Shri Pati who has joined in the institution as an Assistant Teacher on 23 -9 -1997. Challenging the aforesaid order dated 28 -4 -98 this writ application has been filed.

(2.) SHRI K. K. Swain, learned counsel appearing for the petitioner, challenged the order on the ground that the school in question was an aided educational institution at the relevant time. The Managing Committee had the power to make appointments under Rules 8(2) (a), 5(8) and 5(9) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the staff of Aided Educational Institutions) Rules, 1974 (hereinafter called 'the 1974 Rules'). Referring to Rule 8(2)(a), Shri Swain submitted that the Managing Committee and the authority to make ad hoc appointments for a period not exceeding three months and it shall not be necessary to apply to the Selection Board for appointment against the vacancies for a period of six months or till the date of receipt of the list referred to in Sub -rule (2) from the Selection Board, whichever is earlier and all such appointments may be made by the Managing Committee with prior approval of the Inspector of Schools. Under Sub -rule (9) of Rule 5 of the 1974 Rules the Managing Committee has also the authority to extend the period of appointment beyond six months till the recommendation of the Selection Board is received with the prior approval of the Government. According to him, a combined reading of the aforesaid provisions for ad hoc appointment for a period of three months would show that no prior approval is required and ad hoc appointment for a period of six months or more requires prior approval of the Inspector. Even for appointment for a period of more than six months post facto approval can be obtained. Reference in this regard is made to a decision reported in, 1998 (I) O.L.R. 520 : Pravati Kumari Uday Singh v. State of Orissa and Ors., Therefore, according to Shri Swain, there is absolutely no illegality in appointing the petitioner against an available vacancy on ad hoc basis and the so called ban imposed by the State Government cannot override the statutory powers. So fat as the second ground of rejected is concerned, according to Shri Swain, prior approval is not necessary for such appointments and post facto approval can also be obtained.

(3.) FROM the averments made in the writ application as well as in the counter affidavit the following facts remain undisputed : One Balaram Das, a regular teacher of the institution resigned from his post on 16 -5 -90 and his place the Managing Committee of the institution appointed the petitioner on ad hoc basis pending appointment of the Selection Board candidate, on 17 -5 -90. The appointment letter in Annexure -2 shows that the petitioner was appointed as Assistant Teacher against the post of Trained Metric temporarily and was likely to be replaced as and when a Trained Matric Teacher is sponsored by the Selection Board. The first question that is to be decided is as to whether on the face of a ban order the Managing Committee could appoint the petitioner in the post. The ban ordered 31 -12 -88 shows that the Government had banned appointment of teachers on ad hoc basis and in supersession of all previous instructions issued from the Directorate of Elementary Education, No ad hoc appointment shall be made against Trained Matric Teacher in aided M. E. Schools until further instructions. Under rule 8(2)(e) of the 1974 Rules the Managing Committee of an aided educational institution can make appointment on ad hoc basis for a period not exceeding three months. Law is well settled that Executive Instructions and Circulars cannot override the statutory provisions of law. Therefore, the appointment of the petitioner cannot be said to be illegal only on the ground that there was a ban order imposed by the State Government. If the statutory provision authorises the Managing Committee to make such appointment, no Administrative Instruction can take away that right given to the Managing Committee under the statutory rules.